March 9, 2018
Three cases that could change the way you do business
There have been some big employment law decisions handed down recently and the outcomes may impact the way you deal with your people issues.
We discuss three of the most important ones here.
1. Having a “defensible business reason” to make someone redundant isn’t always enough
In February, the Fair Work Commission ruled that an employer’s failure to properly consult over a redundancy made it unfair, even though the employer had a “defensible business reason” for the decision.
In 2016 the employer made a worker’s role redundant due to changes in its business. But the employee argued that the redundancy was a sham and that she had only been selected because she’d previously complained about her manager.
The FWC found that the employer had in fact acted as a result of genuine operational needs of the business and not because of the employee’s complaint. However, it became evident that the employer had pre-determined that she would be selected for redundancy before ever meeting with her to discuss options, and the prospect of redundancy was not raised with other employees.
This failure to consult cost the business almost $5000 in compensation.
Takeaway: no surprise here – ensure you dot i’s and cross t’s when it comes to the processes around redundancy.
2. Employer’s failure to issue policy and provide training made it liable for assault
The Queensland Civil & Administrative Tribunal found a hotel owner was liable for an employee’s PTSD after she was assaulted in overnight accommodation.
The worker, a hotel employee, had only just moved to Brisbane to take up the job and shared accommodation on premises with the hotel’s caretaker.
One evening soon after the worker started the job, the caretaker entered her room naked, touched her inappropriately and tried removing her underwear. He later told her not to tell anyone about what he had done.
The worker claimed this incident left her with post-traumatic stress disorder (PTSD) and that she was unable to work for several years after the incident. She brought a claim against both her employer and her assailant under the Queensland Anti-Discrimination Act 1991.
QCAT found that, as the assault occurred in the employer’s accommodation and while the caretaker was effectively on duty, the employer was vicariously liable for his actions. QCAT also found that the employer should have provided an anti-discrimination policy and training for its workers on discrimination and harassment.
QCAT ruled that, although the employer couldn’t have known exactly what the caretaker was likely to do if it had taken these steps and had informed staff of their legal obligations, the incident may not have happened.
It concluded that the caretaker and employer were jointly liable and order them to pay the worker more than $300,000 in damages.
Takeaway: training your people regularly around your bullying and harassment policies is no longer best practice, it’s essential. Training is one of the only ways you can ensure that all your people understand clearly what you will and will not tolerate as an organization, and it’s your best line of defence should a work-related incident occur
3. Qantas acted harshly sacking attendant over a theft
The FWC has ruled that Qantas acted harshly when it sacked a 50-year old flight attendant for stealing alcohol from a plane.
In 2016, Qantas carried out a random search following a Perth to Sydney flight and caught the flight attendant leaving the aircraft with a bottle and a can of beer, as well as two small bottles of spirits.
When confronted, the flight attendant claimed the goods may have come from the hotel minibar. He later changed his tune and agreed that he had deliberately put the beer in his bag but said that taking the spirits, which were found in his pockets, was accidental.
After an investigation, Qantas terminated the flight attendant’s employment, paying him in lieu of notice.
The flight attendant brought an unfair dismissal claim in which he argued that Qantas hadn’t properly considered his circumstances, including his age and length of service. He also argued that they had failed to take into account his contrition.
The FWC agreed and awarded the flight attendant more than $33,000.
In doing so, it found that, while Qantas’ reaction was entirely understandable, it was also harsh. The flight attendant had a long and unblemished work record and given his age would find it hard to get a comparable job. He had also only stolen a very small amount of Qantas property.
That said, the FWC agreed with Qantas that it wasn’t appropriate to reinstate the flight attendant, given he had initially fabricated his story about where the beer came from. This was despite the fact that he had helped the investigation after initially telling a lie.
The FWC noted that, but for the incident, the flight attendant was likely to have worked for Qantas for another 15 years and therefore could have been entitled to half a million dollars in compensation. However, it was capped at awarding him 26 weeks’ earnings.
Takeaway: don’t just assume that a seemingly sackable offence will stand up to an unfair dismissal case. Other factors like length of service, an unblemished work record and of course the process you follow may well come into the equation.
Get in touch if you’d like to discuss how we can help manage the risk of any situations like these impacting on your business.